The OC Transpo bus involved in the Jan. 11 crash at Westboro Station is towed from the scene the following day.David Kawai / Postmedia

More than seven months after a double-decker bus collided with a metal overhang at the Westboro bus station, OC Transpo driver Aissatou Diallo faces three charges of dangerous driving causing death and 35 counts of dangerous driving causing bodily harm.

What do these charges mean and what do they suggest about how the trial will unfold?

Q: What is dangerous driving casing death?

A: This is a criminal offence punishable by up to 14 years in prison. There are two components. The first is prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death. The second is a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances, according to a 2012 Supreme Court judgment that defined the characteristics of dangerous driving causing death. “The fault component ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.”

The court will be asked to decide, in light of all of the evidence, if a reasonable person would have foreseen the risk and taken steps to avoid it and if the failure to foresee the risk and take steps to avoid it was a marked departure from the standard of care expected under the circumstances.

Q: What is the burden of proof in this case?

A: The Crown will have to prove beyond a reasonable doubt that all elements of the charge are present — that the accused deviated from the standard of care and the conduct was outside the expected norms of conduct, said University of Ottawa business and law professor Gilles LeVasseur. This could involve a broad range of evidence, including expert witnesses, camera recordings, blood tests of the accused, cellphone conversations with people on the bus and witnesses on the bus or on the platform.

The defence needs to prove that there is a reasonable excuse for the alleged wrongdoing. It could be because of an omission or an action that contravenes the standard of conduct expected of the defendant.

Q: What does the charge suggest about the Crown’s evidence?

A: It suggests that the Crown is confident that the burden of proof can be met, that there was a marked departure from the standard of care and that the accused knew and understood this, said LeVasseur. This would involve proving that the accused had the required knowledge and training to drive a double-decker bus safely and disregarded it, which resulted in bodily harm and death.

“You don’t want to be open to the defence of non-performance due to lack of training,” he said. The accused had a duty of care to the “neighbour” — a legal term for the people she was serving.

The charge also suggests that the Crown must be confident that the evidence shows the driver wasn’t pressured or reluctant to drive the bus.

Q: What’s the defence in such a case?

A: The defence will likely raise questions about why the event occurred as it did, said LeVasseur. The defence could raise questions about the construction of the platform, the weather conditions or the mechanical condition of the bus, for example, and argue that the driver took it for granted that she was operating the bus in a manner that took these factors into account.

Q: Does it make a difference that the accused was a professional driver?

A: No. Anyone who employs a vehicle is required to meet the standard for that class of vehicle, said LeVasseur.

Q: How is a dangerous driving charge different from a charge of criminal negligence?

A: Both are charges under the Criminal Code of Canada. However, criminal negligence is a more general charge. The maximum sentence for criminal negligence is 10 years. In sentencing, the judge would weigh the degree and severity of the harm, and the consequences for the victims and their families.

Q: Both the city and police investigators have been notably silent since the crash. Is there an explanation for this?

A: The trial could be by jury or judge only, but LeVasseur said it would not be surprising if it is by judge only. However, this is likely to be a very emotional trial with victims and families of the deceased acting as witnesses, and care has been taken not to prejudice potential jurors.

“You don’t want the defence to argue that traditional or social media has brought the debate about fault and the consequences for the victims into the public domain. Emotional distress may alter perceptions about guilt.”

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